PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  26 September 2000
	DOCKET NUMBER:  AR2000046991

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	MR. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration for promotion to major or promotion to major without reconsideration.

3.  The applicant states his officer record brief (ORB) was updated to show the updated photo he submitted, but the updated photo was not placed in his promotion board packet.  He was unjustly not fairly considered for promotion by the fiscal year 1999 selection board for this reason, and he should be promoted or reconsidered for promotion based on this error.  He submits home pages of several career branches showing the importance of photographs for selection board purposes.  He states the absence of the updated photo was the cause of his non-selection for promotion, and that he was directed to submit an appeal to the Correction Board.  He also submits a photostat of the photograph, dated 
3 February 1998, and a copy of his ORB, in support of his request.

4.  The applicant’s military records show that with prior enlisted service, he was commissioned a Reserve second lieutenant, effective 25 May 1988, from Reserve Officers Training Corps from the University of Nevada, Reno, Nevada.  He entered active duty effective 27 November 1989.  He was promoted to first lieutenant effective 24 May 1991 and to captain effective 1 August 1993.

5.  He was considered but not recommended for promotion to major by the fiscal year 1999 selection board.  The proceedings or reason(s) for the non-recommendation were not divulged by the board.

6.  His ORB prepared for selection board use shows a date of last photo as October 1998.  The photo reviewed by the selection board was not identified.

7.  His request for reconsideration based on non-review of his updated photo was denied by the Chief, Promotions Branch on 8 March 2000.  The official admitted that the updated photo was not reviewed, that the then current photo, dated 
3 February 1998, was instead reviewed.  He further advised the applicant this did not constitute material error and that promotion reconsideration will not be granted based on the absence of an updated official photograph.

8.  His second request was denied on 24 March 2000 for the same reasons.  He was advised that if he was dissatisfied with the denial that he may submit an appeal to the Correction Board, and provided him with the proper form for this purpose.

9.  Failure of review of an updated photo by a promotion selection board does not constitute material error as defined by pertinent regulations regarding promotion consideration.

10.  His records also show one of his officer evaluation reports, the one completed for the period 28 April 1990 through 5 February 1991, is erroneously shown on the restricted (R) portion of his Official Military Personnel File (OMPF) micro fiche, instead of the performance (P) portion, and was not reviewed by the promotion board as required.  OER’s are required to be filed on the P fiche.  The P fiche, not the R fiche, is required to be reviewed by selection boards.  This error constitutes material error as defined by pertinent regulations regarding promotion consideration.

11.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection.

12.  The regulation specifies that failure to review an updated photo is not material error, but that failure to review an OER is material error for promotion reconsideration purposes.  It also specifies that, with few exceptions, the P fiche is reviewed for promotion purposes.

13.  Legislation and policy provides that upon reconsideration for promotion based on material error in the records at the time of review, that reconsideration will be accomplished using the criteria in effect at the time of the original consideration.  This includes review of the records as they should have been constituted at the time, and that the records of the individual concerned will be matched with a population of those considered at the time, including those selected and not selected.

14.  Army Regulation 600-8-29 prescribes the policy and procedures for promotion of commissioned officers on the active duty list.  It provides that official photographs are required for updating every 5 years, that photographs will be provided to the promotion board in hard copy if available, and that updated photographs should be forwarded to Commander, Total Army Personnel Command, ATTN: TAPC-MSE-R, 200 Stovall Street, Alexandria, VA 22332-0443.

15.  Army Regulation 600-8-104 (Military Personnel Records) prescribes the policy and procedures for initiation and maintenance of individual personnel records, including OMPF’s.  It prescribes that OER’s will be filed in the OMPF P fiche.  It also prescribes that official full length photographs will be maintained in the respective individual’s Career Management Information File and updated accordingly with required replacement photographs.

16.  Army Regulation 640-30 (Photographs for Military Personnel Files) establishes policy, procedures, and tasks for taking, selecting, submitting, and maintaining current photographs for military personnel files.  It specifies that each soldier must arrange to have a photograph taken when required, that he or she must wear the proper uniform with insignia and ribbons correctly displayed, and to forward photographs for active duty officers to Commander, Total Army Personnel Command, ATTN: TAPC-MSE-R, ALEX VA 22332-0400.

17.  On 21 September 2000, an official of the Total Army Personnel Command Promotion Branch informed the analyst in this case that the applicant was selected for promotion to major by the 2000 promotion board.

CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to promotion reconsideration for major by a special selection board under 1999 criteria, based upon the material error in his records when reviewed and not recommended by the 1999 promotion board.  His OER ending on 5 February 1991 was erroneously not reviewed.  This constitutes material error and requires promotion reconsideration by a special selection board under the original criteria.

2.  His contentions concerning the failure to review his updated photo have been acknowledged by Department officials; however, in accordance with pertinent regulations on the issue, this does not constitute material error and does not mandate promotion reconsideration.  This Board agrees.  The Board concludes that while his latest 1999 photo was not reviewed, his 1998 photo was, and that this did not cause his non-recommendation for promotion.  Notwithstanding this however, the Board notes that the applicant’s 1999 photo should have been the photo of record for the 1999 promotion board, and that it is this photo that should be reviewed by a special selection board for reconsideration purposes.

3.  The Board also concludes that the applicant is not entitled to promotion under 1999 criteria without standardized competition with his contemporaries via promotion reconsideration amongst his peers as provided for by pertinent regulation and policy.

4.  The Board notes that the misfiled OER should be transferred from the OMPF R fiche to the P fiche as required by pertinent regulation.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by transferring the OER ending on 5 February 1991 from the OMPF R fiche of the individual concerned, to the P fiche.

2.  That, following administrative implementation of the foregoing, and placement of the 1999 or most current official photograph in the rank of captain, in his records, the corrected records be submitted to a duly constituted special selection board.

3.  That, if he is selected for promotion, he be promoted and assigned an appropriate date of rank.

4.  That, if he is not selected for promotion, he be so notified.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ao___  __tb___  __mm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2000046991	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	111.00	
3.		
4.		
5.		
6.